Wash. Court of Appeals published opinion — 723448.pdf

establish Crew Chief Legere's evaluation was influenced by Allen. The ALJ concluded

the evaluation did not constitute "retaliation against Mr. Swanson under Chapter 42.41

RCW and Chapter 4.20 SMC."

Although Mr. Legere's evaluation was unsatisfactory in that it stated Mr.
Swanson was not performing up to step in all areas, and that he needed
additional training, Mr. Swanson has not established by a preponderance
of the evidence that Mr. Allen in any way influenced Legere's evaluation.
Mr. Swanson's problem areas as identified by Mr. Legere were nothing
new to Mr. Swanson; crew chiefs had made similar comments regarding
Mr. Swanson's rigging skills and preparation for years. In addition, in ten
out of fourteen categories Mr. Legere found Mr. Swanson "Met
Expectations." Mr. Legere circled "ECAC" not to threaten Mr. Swanson's
apprenticeship or hold him back, but to get him the training he needed to
improve, for his own safety and the safety of his fellow lineworkers.

The ALJ found that posting a PAL sticker on Swanson's locker "and the

impersonation of Mr. Swanson to the Seattle Times were undoubtedly hostile actions
taken by SCL employees." However, because the PAL sticker was placed on

Swanson's locker more than 30 days prior to filing the whistleblower retaliation

complaint, the ALJ did not consider it in determining whether SCL retaliated against
Swanson. The ALJ concluded Allen retaliated by "either vocally or tacitly

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encourage[ing]" the impersonation of Swanson in the Seattle Times online comment, if

not posting the comment himself, in violation of chapter 42.41 RCW. Conclusion of law

5.10 states: